[2011] KEHC 3630 (KLR)
The court found that the respondent deserted the matrimonial home, failed to provide for the petitioner and the child, and relocated abroad without consultation or communication. The evidence established that the marriage had irretrievably broken down due to desertion. The court was satisfied that the petitioner was...
Source-derived case information.
- Citation
- [2011] KEHC 3630 (KLR)
- Parties
- Petitioner: N.B.S alias N.B. G.S; Respondent: J.M.B
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 109 of 2010
- Procedural Posture
- Divorce Cause / Judgment
- Outcome
- petition allowed; marriage dissolved; custody of child granted to petitioner; no order as to costs
- Judges
- LK Kimaru
- Legal Topics
- Divorce, Desertion, Custody of Child
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
N.B.S alias N.B. G.S
Petitioner
J.M.B
Respondent
Procedural Posture
Divorce Cause / Judgment
Legal Issues
- 1 Whether the respondent's desertion constitutes sufficient grounds for dissolution of marriage under the Marriage Act.
- 2 Whether the petitioner is entitled to custody of the child of the marriage.
Ratio Decidendi
The court found that the respondent deserted the matrimonial home, failed to provide for the petitioner and the child, and relocated abroad without consultation or communication. The evidence established that the marriage had irretrievably broken down due to desertion. The court was satisfied that the petitioner was entitled to a decree of divorce on the ground of desertion. The court also found it appropriate to grant custody of the child to the petitioner, who had been the primary caregiver. The respondent's failure to participate in the proceedings or contest the petition further supported the petitioner's case. Accordingly, the court dissolved the marriage and granted custody of the...
Court Disposition
petition allowed; marriage dissolved; custody of child granted to petitioner; no order as to costs
Orders
- The marriage between the petitioner and respondent is dissolved.
- A decree nisi dissolving the marriage is issued, to be made absolute in 30 days.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
DIVORCE CAUSE NO.109 OF 2010
N.B.S alias N.B. G.S ….……………………………………………………..PETITIONER
VERSUS
J.M.B………………………………….......................................................RESPONDENT
J U D G M E N T
The petitioner and the respondent were married under Customary Law in 1999. On 28th July 2009, the petitioner and the respondent formalized their marriage at the Registrar’s office in Nairobi pursuant to the provisions of the Marriage Act. The marriage was blessed with one (1) issue, a girl born on 13th September 2000. According to the petitioner, in August 2009, the respondent left the matrimonial home for the United States of America without informing her. The petitioner avers that since then, the respondent had cut off all communication with her necessitating the petitioner to file the present petition for divorce. From the petition, it was apparent that prior to the respondent deserting from the matrimonial home, the marital relationship between the petitioner and the respondent had deteriorated on account of suspicion on the part of the petitioner that the respondent was engaged in adultery with other women. The petitioner complained that the respondent failed to provide for her upkeep and that of the child of the marriage. It is for the above reasons that the petitioner was of the view that her marriage to the respondent had irretrievably broken down with no hope of salvage. The petitioner therefore urged the court to grant her petition for divorce and therefore dissolve the marriage.
The respondent was served with the petition for divorce. He did not enter appearance. Neither did he file papers in answer to the petition. The Registrar of this court issued a certificate to the effect that the hearing of this divorce cause shall proceed in the absence of the respondent. This court was satisfied that the respondent was duly served and therefore directed the hearing of the petition to proceed the absence of the respondent notwithstanding. The petitioner basically reiterated the contents of her petition for divorce. She urged the court to grant her petition for divorce. She stated that she had not attempted to be reconciled with the respondent because the respondent had cut off all channels of communication with her.
This court has carefully considered the evidence adduced in support of petition for divorce. This court is satisfied that, indeed, the respondent deserted the matrimonial home thus entitling the petitioner to petition this court for divorce on the grounds of desertion. It was apparent to this court that prior to the respondent deserting the matrimonial home, his relationship with the petitioner had deteriorated. The respondent was not providing for the family. He left the country and re-located to the United States of America without having the courtesy of consulting the petitioner. In the premises therefore, I will grant the petition for divorce.
The marriage solemnized between the petitioner and the respondent, firstly under Customary Law, and later converted to Statutory Marriage on 28th July 2009 is hereby dissolved. Decree nisi dissolving the said marriage is hereby issued. The decree nisi shall be made absolute thirty (30) days from the date of this judgment. The petitioner shall have the custody of the child of the marriage. There shall be no orders as to costs.
DATED AT NAIROBI THIS 25TH DAY OF FEBRUARY, 2011
L. KIMARU
JUDGE